ROCK-PAPER-SCISSORS: PLAYING THE ODDS WITH THE LAW OF CHILD RELOCATION

FAMILY COURT REVIEW, Vol. 45 No. 2, April 2007 193–213© 2007 Association of Family and Conciliation Courts

Blackwell Publishing IncMalden, USAFCREFamily Court Review1531-2445© Association of Family and Conciliation Courts, 2007April 2007452Original Article

FAMILY COURT REVIEWDuggan/ROCK-PAPER-SCISSORS

INTERNATIONAL JUDICIAL PERSPECTIVES ON RELOCATION

ROCK-PAPER-SCISSORS: PLAYING THE ODDS WITH THE LAW OF CHILD RELOCATION

The Hon. W. Dennis Duggan

This article offers for inspection the proposition that the adversarial evidence-based litigation process is unsuit-able for resolving custody cases in general and relocation cases in particular. It analyzes the leading cases fromNew York, Massachusetts, California, England, Canada, and Australia. It reaches a conclusion that no jurisdictionhas devised a legal standard or formula that enables a judge to predict the future best interest of a child if thatchild is allowed to relocate with one parent away from the other. For this reason, the court has a duty to offer assophisticated and friendly a settlement process and atmosphere as possible. However, knowing that judges willstill be required to resolve these difficult cases because they often seem impervious to settlement, the articleoffers thirty-six factors that a court should consider in all move-away cases. By relying on each of these factors thatis relevant to the case, the parents will have an understanding of why the decision was made the way it was andit will also allow for effective appellate review.

Keywords:

relocation

;

move-away

;

presumption

;

burden of proof

;

factors

;

international

;

best interest

The law of child relocation in America is a mess. It is not much better anywhere else.It has been dressed up in shibboleths and word formulations that make it look like we,as family court judges, know what we are doing—we don’t. The law pretends that we candetermine with some high degree of predictive accuracy whether a move by a child withone parent away from another parent will be in a child’s best interest—we can’t. The truthis this: there is no evidence that our decisions in these types of cases result in an outcomethat is any better for the child than if the parents did rock-paper-scissors. In fact, ina relocation case, a judge is almost never deciding what is in a child’s best interest. Rather,he or she is deciding what will be the least detrimental alternative. So, that being the case,if a decision must be made that has no better than a 50–50 chance of being correct, I saylet the parents make it, not the judge. When a judge makes a mistake, it is difficult to undoand the damage can be irreparable. Separated parents, on the other hand, who respect eachother and who truly love their children, can and do take corrective actions every day thatare in their children’s best interest.

The overarching philosophy that guides my approach as a judge to relocation cases and,indeed, all custody cases is this: I know what is in the best interest of my child and I knowwhat is in the best interest of children in general. However, I do not know what is in thebest interest of your child and I do not believe that the adversarial litigation process thatwe use to resolve custody disputes can prove to me what is in your child’s best interest. Forthis reason alone, custody cases should never be tried.

Correspondence: [email protected]

194 FAMILY COURT REVIEW

Because relocation cases are just a subspecies of custody cases, I want to first offer forinspection two propositions. First, I maintain that the adversarial litigation process, with itsrules of evidence, is incapable of producing proof from which a trier of fact can determinea child’s best interest with any degree of predictive accuracy that its own rules of evidencethat govern reliability would accept.

1

Second, given the coin-tossing reliability of the fact-finding process, and the fact that contested custody litigation is corrosive to parents and toxicto children, custody issues should never be resolved by trials. That’s the good news. Thebad news is that, for relocation custody trials, all of the deleterious aspects of custody trialsin general are multiplied.

When Albany County Family Court first moved into its new courthouse last year, Ithought that putting bulletproof glass in the judges’ chambers was a bit extravagant andsecurity overkill. After all, how many judges have been shot in chambers by a sniper?After my colleague was recently shot just that way in Reno, Nevada, the bulletproof glassdecision now looks pretty foresightful.

It also got me thinking about how often the entire process of custody litigation can causevery good people to take complete leave of their senses. Sometimes, perhaps as in Reno,people who are just a step from going off the deep end, in an act of irrational desperation,resort to drastic measures that have tragic results.

So, it is worth asking, are we really doing the best that we can? Is our current family justicesystem the best we can offer separating parents? If we could design a system from scratch,is this what we would have? Churchill once said that democracy is the worst form of govern-ment ever invented except for all the others that have been tried. The corollary to that forfamily court would be that the adversarial litigation system is the worst form of conflict resolu-tion for families ever invented—period. To convince you of this, what follows is an explanationof why custody cases in general and relocation cases in particular should never be tried.

Someone once noted that in criminal cases you see bad people at their best and incustody cases you see good people at their worst. When parents come to family court theyencounter something like a reverse Heisenberg Uncertainty Principle. Werner Heisenbergwas a German physicist who won the Nobel Prize for his work in quantum physics. He wasthe leading scientist in Hitler’s efforts to build an atom bomb. The conventional wisdom is thathe sat on his hands and delayed the final product until the Allied forces were approachingBerlin. Closer to the truth is that, although the Germans discovered nuclear fission, had thefirst military project set up to research the feasibility of an atomic bomb, and had access tolarge supplies of uranium and heavy water, they never came close to building a bomb.

Heisenberg’s uncertainty principle states that, when one views the internal workings ofan atom, the very act of that inspection changes the way that things look. In family court,the inspection that we bring into parents’ lives changes them and most often makes themworse. Even the language we use puts them in full battle mode. How often do we hear aparent say, “I’m going to fight for

custody

, he won’t even get

visitation

.” This, of course, isthe language of our law.

2

While a custody proceeding is pending, parents often do thingsthat are directly contrary to their best interests, such as leaving a hateful, obscenity-lacedvoice mail on the other parent’s cell phone the night before court. “For by your words youwill be judged and by your words you will be condemned.”

3

With this said, let’s review the10 reasons why a custody case should never be tried and why this conflict resolutionmethod should be condemned.

1. NO ONE CAN AFFORD A TRIAL.

No parent has a litigation savings account setaside to pay for protracted custody disputes. When parents split, their finances are already

Duggan/ROCK-PAPER-SCISSORS 195

stretched to the breaking point. Paying for a lawyer usually tips them over the edge. Franticparents max out their credit cards, sell their jewelry or other valuables, or borrow from theirparents. If there is any lawyer out there reading this who has actually collected his or herentire fee after a full contested custody trial, please e-mail me. I would like to meet such afortunate person. Let’s not forget the emotional costs. When parents are in the process ofseparating, their children are often the unwilling occupants of a war zone. They never knowwhen family emotions will explode, resulting in some part of the house being trashed andthe police at the door.

2. YOU CAN’T PROVE A POSITIVE.

In our law school trial advocacy course wewere all taught that you can’t prove a negative. In family court it is just the opposite—youcan’t prove a positive. A custody determination is supposed to be based on the best interestof the child. This proposition is not susceptible to being proven by evidence under ouradversarial litigation system. Instead, we are really determining the least detrimentalalternative. For example, it is almost impossible to prove with any poignancy how oneparent nursed a child during illnesses or made the school lunches or did the laundry. Butlet a parent send the child to school without his or her lunch and into court will come thesubpoenaed schoolteacher to testify about such a depravity. Of course, what the propoundingparent thinks is such powerful proof is nothing of the sort because there is no family courtjudge in America (or parent for that matter) who has not sent his or her child to schoolwithout a lunch.

3. PARENTS ARE AT THEIR WORST WHEN YOU MUST DETERMINE THEIRBEST.

I mentioned above about how the Heisenberg Uncertainty Principle for familycourts posits that in the course of a contested custody proceeding parents will put theirworst foot forward. Eight years of cooperative coparenting will be flushed down the toiletand the family court judge will be presented with the last 6 months’ worth of trash talkingand other related bad behavior. From this detritus of family relations, the judge is expectedto somehow divine the best interest of the child.

4. YOU CAN’T PUT YOUR FOOT IN THE SAME RIVER TWICE.

This saying isattributed to both the Greek philosopher Heraclitus and an old Indian proverb. It speaks ofthe constantly changing aspects of every person’s life. The adversarial litigation system,with its well-established rules of evidence, is very good at resolving disputes that have beenfixed about a point in time: a car accident, a bank robbery, a note unpaid. In a custodydispute, the judge is asked to review an extended timeline of a family and then predict,sometimes for the next 18 years, which parent will do best by the child. To think that wecan do this is, as Jeremy Bentham once said in another context, nonsense on stilts.

4

Anotheradvantage that the civil and criminal litigation processes have is the presence of a jury,which can speak with the moral authority of the community. In family court, you haveone judge doing what he or she thinks is best. But we kid ourselves if we think we areapplying some value-neutral best interest standard instead of one based on our ownprejudices and biases.

5. TRIALS DESTROY ALL GOOD WILL.

At the end of a contested custodyproceeding, after a forensic psychologist has hung out and analyzed every last piece of thefamily’s dirty laundry and after two litigators have peeled away every last ounce of dignityfrom the parents, the parents will have emotional scar tissue that will last for the rest of their


lives. If they had any good will toward each other at the start of the proceeding, at the end,they will thoroughly hate their attorneys, the judge, the court system, and each other.

6. CONTESTED CUSTODY PROCEEDINGS ADDICT PARENTS TO CONTRO-VERSY.

The process that we provide to parents for resolving the most intimate, private,and emotionally traumatic problems of their lives has, at its base level, a requirement thatboth throw as much mud at the other until both are completely dirty. At the end of this process,we have neutered virtually all of their conflict-resolution skills. The parents’ only hope isthat they can go cold turkey and never return to family court again

.

This happens when theprocess has bankrupted the parents financially and emotionally, like when an addict hitsrock bottom. That sounds depressing and it is. But our goal should be a process in whichparents can resolve their own disputes. How to do this before the family emotionallyexsanguinates is the problem.

7. THEY’RE THEIR KIDS—THE PARENTS SHOULD DECIDE WHAT’S BEST.

When parents walk into their lawyers’ offices, the control over their lives and the future oftheir children starts to slip away. It’s not that lawyers are usurpers of parental power. It’s thatthe process makes this inevitable. When the petition is filed in court and the case comesbefore a judge, parental power slips further away from the mother and the father. Once thecustody trial starts, they have cast their fate to the wind—so the process is backward. Atevery point, our goal should be to empower the parents and assist them in reachingdecisions that are in their children’s best interest. Instead, at every step, we disempowerthem.

8. KIDS WANT THEIR PARENTS TO BE IN CHARGE.

When I interview the children,they almost always say two things. First, they want their parents to get back together.Second, they don’t want to be forced to choose between their parents. The kids still expecttheir parents to be in charge and this means that they don’t want to be conspirators inpsychological warfare. When parents know that a law guardian, a forensic psychologist, anda family court judge will be speaking to their kids, there is the irresistible urge for eachparent to lobby the kids at best and to alienate them at worst. Because of the emotional highdrama that surrounds the separation of two parents, it is almost impossible for them tospeak to the kids in a neutral way and to speak well of the other parent.

9. JUDGES ALWAYS KNOW LESS THAN PARENTS.

The amount of relevantinformation that can be presented to a family court judge in the form of exhibits or witnesstestimony is minuscule compared with what the parents know about their kids and whateach parent knows about the family. If someone is going to make a mistake, it is muchbetter that the parents make it rather than the judge. The parents can make day-to-dayadjustments that are in the best interest of their children. Once a judge has issued anorder, the parents are stuck with it. The court order has no mechanism for adjustment. Itcannot take into consideration the ever-changing circumstances of children’s lives. Onlyif the parents disregard the order can they make improvements for their children. How-ever, the process that resulted in the issuance of that order has also stunted the parents’accommodation skills.

10. YOU REAP WHAT YOU SOW.

The psychological literature is clear and abundanton the deleterious effect of domestic violence on children. Corrosive domestic violence in


this area is not limited to the kids watching one spouse beat up the other. It also includesthe day in and day out exhibition by the parents of incivility toward each other. The kidssoak up these lessons like sponges. The kids are well aware of when mom or dad has to goto court. Their apprehension is the same as when they are called to the principal’s office.The week before court is excruciating for everyone. So the lesson for the kids fromwatching domestic violence is what? It is this: “When I grow up and get married andhave kids and I can’t get along with my wife, I will first say and do terrible things toher and then I will go to court and let some stranger in a black robe decide what’s bestfor my children.”

The 10 factors set forth above apply to almost every proceeding in family court. Unfor-tunately, due to the parental dynamics that surround the issue of relocation, in relocationcases these factors are amplified. This makes relocation cases almost impervious tosettlement. The reasons for this are obvious. In most cases, the moving parent has paintedherself (the general consensus is that about 80% or more of relocation applicants arecustodial mothers) into a corner by the life decisions that she has made before coming tocourt—like getting married to a man who lives in a distant city. For the nonmoving parent—well, what’s in it for him? With neither parent being able to back off of his or her position,and seeing no common ground, the mother and father look to a family court judge to forceone of their hands—but which hand to force?

There are other reasons why custody cases and especially relocation cases should neverbe tried. In addition to the fact that the adversarial approach does not result in a betteranswer with any greater frequency than rock-paper-scissors, there is the problem of collateraldamage. As mentioned above, the adversarial system in family court bankrupts parentsfinancially and emotionally. Find me one parent who would do it again. At the end of a custodytrial, parents who had any good will for each other at the start will thoroughly hate eachother at the end. So, now we expect parents to coparent at a distance when they could notcoparent together. And, to top it off, we just put them through a process that has drainedthem of all interest in cooperation.

Finally, engaging in a contested custody trial violates one of the 10 commandments ofeconomics—namely, that you do not engage in an endeavor when the marginal costs exceedthe marginal gains. Contested custody litigation is almost always all loss and no gain. Afamous American football coach, Woody Hayes of Ohio State University, used to say thatwhen you pass the ball three things can happen and two of them are bad (an incompletepass or fumble vs. a completion). The outcome of a contested relocation case follows thesame rule.

There was not much call to develop a cohesive body of relocation law in the ‘50s, ‘60sor ‘70s in America because many more people stayed married and had fewer childrenoutside of marriage and even fewer parents moved. In 1976, the

D’Onofrio

case from NewJersey really got it started and that decision has been followed widely.

5

Since that time,American courts have been all over the place trying to develop a coherent set of rules forrelocation cases. They have struggled, mainly on three issues: (1) presumptions, usuallyeither in favor of or against the move; (2) burdens of proof and when and how theyshift; and (3) the factors to be considered.

In orbit circling this body of law, just waiting for a propitious launch opportunity, are twopowerful legal nuclear missiles that could blow it all apart. I am talking about a mother’sconstitutional right to travel and a father’s fundamental right to parent. So far these seem-ingly neutral but fundamentally gender-based arguments have gotten short shrift, but no


shorter shrift than legal arguments made for decades in other contexts by Blacks and womenuntil they became the law of the land. (For example, it took 180 years for Blacks and Whitesto have a constitutional right to marry.

6

)The presumptions we find in relocation law fall into four major categories: (1) a

presumption in favor of the custodial parent moving, (2) a presumption against thecustodial parent moving, (3) a presumption in favor of the move after a light burden of proofis met showing that the move is for a valid reason, and (4) no presumption at all.

The burden of proof issue falls into three main categories. These are: (1) the burden ison the moving parent at all times; (2) The burden shifts to the nonmoving parent once themoving parent proves that the move is in good faith and for a valid purpose. Then the non-custodial parent must prove that the move is not in the child’s best interest; and (3) workingin conjunction with a presumption in favor of the custodial parent, the noncustodial parentmust prove that the move is not in the child’s best interest.

With these presumptions and burdens of proof in mind, let’s discuss for a minute howill suited the adversarial process is for resolving relocation cases. Most lawsuits seek toresolve a dispute that has become frozen in time—a car accident, a breach of contract, acriminal act. A relocation case must resolve a dispute by looking at the continuum of thefamily’s life and deciding—then and there—if it would be better for the child’s future tomove to a distant location away from the other parent. In most relocation cases, the baselinecustody decision has been made and the court must predict how well things will go forthe child if mom is allowed to relocate with the children. I don’t care how many wordformulations appellate courts or legislatures come up with, family court judges are in deeprock-paper-scissors territory on this question. Here’s why.

First, because about 80% of parents who seek court-ordered approval to move are mothers,we will use that as the paradigm. I should describe here the typical case I am discussing.I am not talking about the uninvolved parent or the parent who is violent or abuses drugsor alcohol. Those cases are fairly easy to resolve because the parenting deficits on one sidedictate the results. Also, perhaps counterintuitively, I am not speaking of the mutually high-conflict custody cases. Those too are often resolvable because the high degree of conflictcan argue strongly in favor of the move. These are the MAD parents (Mutually AssuredDestruction). The most nettlesome relocation cases involve the low to mildly conflictedparents who are both fully involved in their children’s lives and are competent caretakers.The law of relocation has no answer for these parents.

It is my observation that virtually no mother seeks to relocate for reasons that aredirectly child centered.

7

For this reason, the best interest test immediately devolves into aleast detrimental alternative test. Mothers seek to relocate primarily for four main reasonsafter a divorce or separation: (1) to marry a man who lives in another city, (2) to seek a freshstart with new employment or a return to school, (3) to return to the location where herfamily lives, and (4) to get away from her ex-husband or father of her children. A parentdoes not move from Savannah to San Francisco because San Francisco has better schools,parks, and weather. Because the mother’s decision to move was not based on any child-related considerations, and proof of her non-child-related reasons is of little evidentiaryvalue (because judges are supposed to be making decisions based on the child’s best interest),family court judges hear evidence about schools, parks, and weather—and sometimescrime rates and air quality. Often, this is the majority of the evidence that we hear.

Now, I am obviously speaking here in general terms. There could well be very com-pelling reasons why a mother would want to relocate that had nothing to do with thechildren. For example, a custodial parent may need to move to care for a disabled parent.


And, what about the case in which the mother has fallen in love with another man and wantsto marry and move to his city? These are very good reasons to allow a parent to move, buthow do you prove by evidence that such a move is in the best interest of the children?Should there be a presumption that a happy mother will raise happy children? What else isthere in these types of cases? I say that you can’t prove these cases by any type of evidenceand, in relocation cases (and only to a lesser extent in all custody cases), the law is forcingparents to submit to nothing more than the judge’s personal preference. So, where does thatleave us?

Let’s start with the advice of Bob Dylan, America’s rock-and-roll poet laureate from the‘60s and ‘70s. We really don’t need a weatherman to know which way the wind blows. Weknow intuitively that children do best living with or near their parents. So, in relocationcases, we are left trying to predict how much detriment will be inflicted on (1) the fatherby being separated from his children and (2) the children by being separated from theirfather. The second issue then becomes this: does enough of the enhancement to the mother’snew life trickle down to the children and does the trickle-down enhancement offset thedetriment to the children and the father caused by the move? I say that there is no evidencethat can be presented to a court that can prove this issue one way or another with any betterpredictability than rock-paper-scissors. And, certainly, evidence about how much better theschools, parks, and weather are in San Francisco proves next to nothing. Using that standard,I would allow all moves of children to Maine, America’s most child-healthy state, and denyall moves to Mississippi, America’s most child-unhealthy state.

8

Let’s examine how preposterous it really is to consider this schools-parks-weather typeevidence. First, loving and competent parents raise wonderful and successful children allover our country regardless of differences in schools, parks, and weather. Let’s take crimerates, another irrelevancy for which evidence is frequently offered. Say, for example, aparent wants to relocate to Baltimore, which is a high-crime city. How relevant could thatbe unless I could compute the odds that the child will either be a crime victim or become acriminal by age 18, versus the same odds in the present location? I am sure a demographercould take a pretty good whack at this but would it be admissible? In any event, I amsure that the odds are remote. If they are under, say, 5% aren’t we in the realm of guess-work? And what is our baseline: the neighborhood, the census block, the ZIP code area? Ifwe start accepting this type of evidence, why not compute earthquake probabilities for achild who would be relocated to San Francisco or hurricane probabilities for a move toSouth Florida? Or, why not receive air pollution evidence for a child who would be relocatedto Houston or arsenic levels in water in Arizona? In fact, there is even a rating for the leaststressful cities in the United States (Albany, NY is the least stressful), so let’s accept thatas evidence in a relocation case. And, while we are at it, because Mississippi is at or nearthe bottom of so many child welfare parameters, let’s declare martial law and relocate allchildren under age 16 from Mississippi to Maine, New Hampshire, and Vermont, the childwelfare nirvanas of our country.

Obviously, my point here is that the demographic data evidence that is produced inrelocation cases is in a relevancy orbit somewhere very close to Uranus. Unfortunately,until we figure out a better way of determining relocation cases, we are stuck with what wehave. But what do we have?

In the next part, I will look at the leading cases in New York, California, andMassachusetts and compare them with the leading cases in Great Britain, Canada, andAustralia, to see if any appellate court has satisfactorily resolved the conundrum I present.These cases are:


1. New York,

Tropea v. Tropea

9

2. California,

Burgess v. Burgess

10

3. California,

Lamusga v. Lamusga

11

4. Massachusetts,

Mason v. Coleman

12

5. Great Britain,

Payne v. Payne

13

6. Australia,

U v. U

14

7. Canada,

Gordon v. Goertz

15

New York:

Prior to

Tropea

, New York had a very restrictive body of relocation case lawwhich greatly favored the staying parent. The

Tropea

court considered the three-prongedtest that had been developled in intermediate appellate court decisions.

16

First, would themove deprive the noncustodial parent of regular and meaningful access to the child?

17

Second, if so, the custodial parent must show exceptional circumstances to overcome thepresumption that the denial of regular and meaningful access to the staying parent was notin the child’s best interest.

18

Third, if exceptional circumstances were established, the courtwould then go on to an examination of the child’s best interest.

19

In

Tropea

, the New York Court of Appeals held that the three-pronged test was unsatis-factory because (1) it was difficult to apply, (2) lower courts had not settled on a uniformmethod of defining meaningful access, and (3) the test raised artificial barriers to the court’sconsideration of all relevant factors.

20

From a trial judge’s point of view, none of thesereasons were true. The three-pronged test was quite easy to apply and had a high degree ofpredictability. The lower courts had no trouble determining meaningful access; you sort ofknew it when you saw it. The test did set the bar fairly high for moving parents but thebarriers it raised to the consideration of all relevant factors were hardly artificial. However,the law was unfair and placed too great a burden on the moving parent, most often themother. The times had changed. The greater independence and mobility of custodialparents (read, high divorce rates, single-parent births, and more mothers in the workplace)necessitated a more flexible and less stringent approach. The court set forth a list of factorsthat should be weighed in every relocation case.

21

The test became for the court to determine,based on all of the proof, whether it had been established by a preponderance of theevidence that a proposed relocation would serve the child’s best interest.

With

Tropea

, New York established a pure best interest test. There would be no pre-sumptions and the burden of proof (“onus” in British Commonwealth countries) would beon the moving parent and it did not shift. However, one can easily overlook the factor notdiscussed, mentioned in

Tropea

and that factor, the burden of proof standard, supports myrock-paper-scissors theory.

Decisions must be based on a preponderance of the evidence. In simple terms, thismeans that, if I find that the mother has produced convincing proof that outweighs thefather’s proof by 49%–51%, she gets to move. If the proof was 49.9% dad–50.1% mom,mom gets to move. In civil jury trials, the judge instructs the jury that a preponderance ofthe evidence means a “mere tipping of the scale.” If it is a sensitive scale, a “scintilla” ofevidence would tip the balance.

22

Are family court judges that good? Can a family courtjudge really predict the future best interest of a child when the affirmative and competingevidence is within 2/10% of each other? No way, I say.

The facts of

Tropea

were almost inconsequential as were the ones in the companion case,

Browner v. Kenward

.

23

The trial judges permitted the mothers’ moves in both cases, so appar-ently, the old rule was not so dysfunctional after all. In

Tropea

, the mother wanted to relocatefrom Syracuse to Schenectady, a 2-hour drive on Interstate 90, to live with her fiancé. (Fiancé


is a term of near infinite flexibility when used in family court.

24

) However, after all thetrial litigation and two appeals, 3 years later Mrs. Tropea was back living in Syracuse.

California:

As might be expected, California provides a high quantity of drama in therelocation law area. In

Burgess

, the California Supreme Court was asked to decide if amoving parent must show that the move was “necessary.”

25

The case involved two parentswho were prison guards and the mother wanted to move 40 minutes away to be closer toher prison; the father called the drive an easy commute.

26

Let’s stop here and reflect onthis move. In New York City, for example, a subway ride from the upper east side to thefinancial district, door to door, could be 40 minutes or more. Would this mean that, underCalifornia law, a California court might entertain a relocation petition where a parentwanted to relocate from Greenwich Village to Harlem? Hardly. What this does mean is thatbad cases make bad law and

Burgess

is an example of this.The Burgesses were a divorced family with two children, ages 4 and 5 at the time of the

hearing.

27

Their temporary consent order provided for joint legal custody and sole physicalcustody to the mother.

28

The mother claimed that her transfer to a new prison was careerenhancing and that her new residence would permit greater access for the children to med-ical care, extracurricular activities, private schools, and day care facilities.

29

In a statement of exquisite clarity, the

Burgess

court held that

after a judicial custody order is in place, a custodial parent seeking to relocate bears no burdenof establishing that it is “necessary” to do so. Instead, he or she “has the right to change theresidence of the child, subject to the power of the court to restrain a removal that wouldprejudice the rights or welfare of the child.”

30

Would one of those rights be that of the child to have regular contact with his father?

Burgess

doesn’t say.With all of its defects, the Supreme Court’s new rule was an improvement over the one

formulated by the intermediate appellate court. That court held that “the trial court mustresolve whether the benefit to the child in going with the moving parent outweighs the lossor diminution of contact with the nonmoving parent.”

31

How could a lawyer actually provesuch a proposition with real evidence? How could a judge make such a determinationwithout Delphic powers?

If the

Burgess

court had just stopped there and affirmed the trial court’s decision to allowthe mother to move, a lot less mischief would have resulted. Instead, the court effectivelyheld that the custodial parent had a presumptive right to move which could only besuccessfully opposed by a showing that there was a positive harm to the child if the movewas allowed.

32

Under

Burgess

, the mother did not have to prove the necessity of the moveand no amount of harm to the father was relevant.

33

The dispositive issue is, accordingly,“. . . whether a change in custody is essential or

expedient

for the welfare of the child.”

34

This is a curious, even puzzling locution. Under common English usage, something that isessential would not normally be thought of as being expedient. And what were familylawyers and judges to make of the essential/expedient test being stated in the conjunctive?Alas, the trial courts struggled for 8 years trying to interpret and apply

Burgess

. Their plightwas not made any easier when, in 2003, the California legislature amended Family CourtAct § 7501 to add a new section that read, “It is the intent of the Legislature to affirm thedecision in

In re Marriage of Burgess

and to declare that ruling to be the public policy andlaw of the state,” a curious method of legislating, to say the least.

35

Faced with this quagmire


of relocation law, it would then be up to the California Supreme Court, in

Lamusga

, to over-rule

Burgess

in order to save it.In

Lamusga

, the joint legal custodian mother applied for permission to move toCleveland.

36

The trial court denied the application, holding that the parents’ animositytoward each other and the mother’s attempts to limit the father’s contact with the childrenwould effectively deny him contact with his children if the move was allowed.

37

The inter-mediate appellate court, applying

Burgess

, reversed. The court held that the mother wasacting in good faith and the father could not show that a change in custody was “essential”to prevent detriment to the children.

38

(What happened to “expedient”?) The Supreme Courtof California reversed.

39

The Supreme Court took

Lamusga

under review to determine whether the Court ofAppeal misapplied the holding in

Burgess

;

it concluded that it did.

40

Of course, the problemfacing the Supreme Court was that the Court of Appeal had exactly and correctly appliedthe

Burgess

rule. However, the Supreme Court could not say that because it was about tooverrule

Burgess

which was law and public policy set by the legislature. Because it was notreversing on constitutional grounds, the Supreme Court could not actually say that it wasoverruling

Burgess

. So, just as the moving parent no longer had to prove that the move wasnecessary (only that it was made in good faith), the noncustodial parent need not show thata change in custody was “essential” to avoid a “detriment” to the child.

41

The noncustodialparent would now have to show only that a move would cause detriment to the child andthen the court would be required to reexamine the custodial arrangement in light of all therelevant factors.

42

If you are still with me here, ask yourself this: exactly how does a lawyerprove and a judge determine “essentialness” or what is a “detriment”? How much of a detri-ment are we talking about? Where, for example, along the range of the child’s emotionalwell-being from sadness to suicide does the detriment have to fall? It is the unanswerabilityof these types of questions that causes me to believe that judges are in rock-paper-scissorsterritory in deciding relocation cases.

The Lamusga parents had at least a 5-year history of custody litigation that had twoimportant aspects: first, the parents’ relationship was characterized by deep animosities ofeach parent toward the other; second, the family had been followed over all those years byan eminent forensic psychologist, Dr. Phillip Stahl.

43

The trial court judge had issued amultitude of parenting time orders over the years and it is fair to say that both the judge andDr. Stahl were of the opinion that both parents were capable custodians but that the motherwas not able to put aside her animosity toward her ex-husband to foster the children’srelationship with their father and, because of that, she had alienated the children from thefather. It is also worth pointing out that this case did not make any reference to a parentalalienation syndrome. Dr. Stahl had firsthand observation and other direct evidence of theparents’ and children’s behaviors toward each other and it was on these observations thathe based his opinion.

While the appeal was pending in the Supreme Court, the mother changed her mind anddecided to move to Arizona with the children, which she did without first getting courtapproval. It is worth asking at this point what happened to all the reasons that the mothergave the trial judge about why it was so important for her to move to Cleveland? Was beingclose to her family no longer her desire? Was the new position of her new husband at theCleveland Toyota dealership not that important anymore? What happened to her desire tostudy law at Case Western Reserve Law School in Cleveland? Were the parks and schoolsin Cleveland no longer so attractive? There are two obvious points here. First, none of themother’s reasons for moving to Cleveland had any direct connection with the welfare of the


children. Second, her seemingly whimsical decision to move to Arizona and the way shewent about it is strong evidence that her true reason for wanting to relocate was to get awayfrom the children’s father. This makes her stated reasons for wanting to move to Clevelandlook pretextual. A trial judge may do his or her best to evaluate and weigh all the evidencebut, in the end, the judge is just making a prediction that the move will work out well forthe children and it will have some substantial duration. I believe that such a determinationhas no better predictive accuracy than one based on a coin toss.

The

Lamusga court goes on at great length trying to convince the reader that the Courtof Appeal just misinterpreted its Burgess holding. It discusses 17 other cases in some detailto prove that proposition.44 However, the holdings in both of these cases can be stated intwo sentences:

Burgess: In a “move-away” case, a change of custody is not justified simply because thecustodial parent has chosen, for any sound good faith reason, to reside in a different location,but only if, as a result of relocation with that parent, the child will suffer detriment renderingit essential or expedient for the welfare of the child that there be a change.45

Lamusga: . . . Burgess imposes upon the noncustodial parent [no] artificial requirement toprove that a change in custody is “essential.” Both cases recognize that the paramount concern isthe welfare and best interests of the child. A change of custody is “essential or expedient”within the meaning of Burgess, therefore, if it is in the best interests of the child .46

What the California Supreme Court did in Lamusga is engage in a bit of Orwellianlinguistics. First, one can understand when a circumstance makes some action essential.One can also understand when some circumstance makes an action expedient. However,it is difficult to understand when the same action could be either one or the other and stillmeet the same standard of law. We now know that it can’t, because the Lamusga court tellsus that those two words, expressed in the conjunctive, mean only the best interest of thechild. And, with that conclusion, Burgess was overruled and California became a Tropeastate, which, on balance, is a good thing.47

Massachusetts: Massachusetts is an example of another state that has covered this areaof law with bromides and platitudes to the point where the only standard of appellate reviewis whether or not the appellate court agrees with the trial judge. In Mason v. Coleman, theSupreme Judicial Court was asked to determine the relocation standards when parents hadjoint legal and physical custody of their children.48 “We conclude that in such a situationcause shown pursuant to G.L. c. 208 ′ 30, means a showing that removal is in the best interestof the children taking into account all the circumstances and weighing [all] the factors.49”The court goes on to describe the factors that have become standard fare in these types ofcases.50 However, possession being 50% of the law, at least in joint physical custody reloca-tion cases, the relocating parent must have a large quantity of best interest evidence to pre-vail. In Mason the mother did not have enough. So, even if the court says it is a best interesttest, we know that there is best interest and then there is best interest. The Mason case hasa fact problem similar to Burgess, where the move was only 40 minutes away. After thedivorce, the parents lived in the same community, Chelmsford MA (near Lowell), for sev-eral years, when the father moved 17 miles away to Nashua, NH.51 The mother then wantedto move to Bristol, NH, into the family homestead that her parents had vacated.52 The deci-sion fails to mention the distances between the communities, except for the father’s move,which was about a 30-minute drive from the mother’s current residence.53 The mother’s new


residence in Bristol was a 75-minute drive from the father’s new residence.54 Accordingly,it would involve a 45-minute longer drive for the father to get to the mother’s house ifshe was allowed to move.55 So, the rule in Massachusetts is what? A joint custodiancannot move more than a net 45-minute drive from the other custodial parent, but thatother parent can move 30 minutes away?

In Mason, the mother had a good faith basis and substantial reasons for wanting to moveto Bristol, NH.56 The court does not say why the father moved to Nashua. It is interesting(but not explained) that the Supreme Judicial Court took jurisdiction of this case directlyfrom the trial court, bypassing the Appeals Court. The trial court’s decision was reviewedon an abuse of discretion basis and, perhaps, had the Supreme Judicial Court set forthmore facts, the trial judge’s decision for disallowing the move would have been more under-standable. However, on the facts stated, I believe that any four of five trial judges in Americawould have allowed the mother to move. In this case, the mother hit the fifth judge.

The main reason stated against allowing a move was that the parents’ 10-year-old sonhad Attention Deficit and Hyperactivity Disorder and had a 504 plan.57 The judge found thatthe standard achievement tests at the boy’s current school were above the state average andthe Bristol, NH school was below the state average.58 As a trial judge, I find this item ofevidence next to worthless and not much better than comparing average crime rates. True,there are many substandard schools in America and many outstanding schools. If, for example,a child was a prodigy or, at the other extreme, severely emotionally or learning disabled,evidence that a parent wanted to relocate to be in a school district that addressed thosecircumstances could be compelling. However, a parent almost never moves to a distantlocation because of the quality of schools. He or she may move to the suburbs in search ofquality schooling, but not out of state.

The main problem with considering average school achievement test results is that theyare not particular to any particular child. I would predict that if you switched the top 25%of academic achievers from school to school, they would remain in the top 25% and pro-duce similar results on standard achievement tests. This is because the most importantpredictors of school achievement lie not within the schools but in the quality of the child’slife outside of school. In any event, to consider average achievement test scores as evidencein a relocation case is, in my opinion, only a few steps more relevant than looking athurricane risks.

England: The leading case is Payne v. Payne. This is a case about a mother who hatesLondon. The mother moved from New Zealand to London in her early 20s to use it as abase to experience Europe. She fell in love with an Englishman. They married and had adaughter, who is now 4 years old. Things did not go well in the marriage and they movedback to New Zealand for 14 months.59 The father claimed it was temporary, the motherpermanent.60 Litigation in New Zealand resulted in a ruling that England had jurisdictionand the parents returned to London, except that upon arrival the mother hid the child andpolice intervention was needed to provide parental access to the father.61 That did not seemto bother the court and they ruled for the mother, allowing her to move to New Zealand.62

This is the court’s rationale. It is worth quoting the language of the decision, lest you thinkI am making this up.

The mother has an intense dislike of life in London. She feels isolated and gets depressed. Shedoes not like the area in which she lives. Last year her car was stolen, and crimes (includinga rape) have been committed just outside her house. Such friends as she has live a considerable


distance from [her home] . . . Because of her working arrangements and social difficulties (shedoes not have a chance to meet other young mothers), she is, in her own words, “unavailableto facilitate [the child’s] need to meet other children to play with or do outside activitiesmuch . . . The mother did in evidence say that she realizes that her ‘attitude is exceptionallyunhelpful.’63

The court, under the heading “The foundation of the guidance,” goes on to statethe English rule, what I would call the “contented caretaker” presumption.

Logically and as a matter of experience the child cannot draw emotional and psychologicalsecurity and stability from the dependency unless the primary caretaker herself is emotionallyand psychologically stable and secure. The parent cannot give what she herself lacks. Althoughfathers as well as mothers provide primary care I have never myself encountered a relocationapplication brought by a father and for the purpose of this judgment I assume that relocationapplications are only brought by maternal primary carers . . . Thus in most relocation cases themost crucial assessment and finding for the judge is likely to be the effect of the refusal of theapplication on the mother’s future psychological and emotional stability.64

The court goes on at some lengths to say that they are not creating a primary caretakerpresumption and that the welfare paramountcy of the child should predominate.65 How-ever, its discussion does not pass the walks-like-a-duck test. If it is not a rule of evidencethe court has created, the message is loud and clear in Payne that the contented primarycaretaker is the top consideration in relocation cases. As with most of these relocation casesthat come down from the highest courts, they go on for so long and repeat everything somany times that anyone later reviewing the opinion can pull out of the decision support forvirtually any proposition. And, if the question comes up again for review, the appellate courtcan point to this phrase or that phrase in the first opinion and say that what a court reallysaid was—well, take your pick. However, reading between the lines the message is veryclear. In Payne, there was virtually no evidence supporting a relocation of the child to NewZealand—except the mother’s stated discontent with living in London and the court’sprediction that she would be happy if she were allowed to live in New Zealand and thathappiness would trickle down to benefit the child.66 What kind of standard is that?

Australia: In U v. U both parents were from India but the father and daughter wereAustralian citizens and the mother had permanent resident status in Australia.67 The mothermoved with the child to India without notice to the father.68 The father went to India tolitigate the custody issue and a temporary consent order was entered allowing the motherto retain custody in India.69 Three years later the mother returned to Australia to attempt areconciliation with the father.70 That attempt failed and the mother again tried to sur-reptitiously return to India with the child.71 This was prevented by a restraining orderobtained by the father.72 However, the mother then secretly relocated to another residenceabout 30 miles away, again without the father’s knowledge.73 Litigation eventuallyresulted in an order of primary custody to the mother with a requirement that she live inthe Sydney area.74 That decision was affirmed by the Full Court of the Family Court ofAustralia.75

At trial, both parents submitted parenting plans and a forensic evaluator maderecommendations.76 The evaluator basically stated that there was no good resolution to thesituation and that any resolution would cause the child distress.77 The primary factor wasthat the mother was unhappy living in Australia and wanted to return to her birth home in


India.78 This case is a great illustration of how relocation cases are really a search for theleast detrimental alternative.

The High Court of Australia affirmed both the trial court and Full Court of the FamilyCourt of Australia in a 5–2 decision.79 However, the opinions on both sides of the case raiseimportant issues and provide guidance for the trial courts in the future. First, the opinionmakes it quite clear that a trial court should take evidence of the feasibility of a parallelmove by the father.80 In U v. U, the father was an accountant who was born in India.81 Heoffered no evidence why he could not move back to India, but the mother had decentreasons for wanting to move, which included an enhanced career in her business field andcloseness to family.82 She had no family in Australia.83 The mother also offered a well-thought out parenting plan which made several concessions to the father who wouldremain in Australia.84

The court also noted the rock-and-hard-place spot a relocating parent will find herselfin if the court can consider whether she will or will not move if she is not allowed to takeher child.85 For the reasons given in Justice Gauldron’s dissent, it would be a wise rule ofevidence that the opponent of the relocation should not be permitted to put into issue the“will she stay or will she go” issue, but the proponent of the relocation could do so if shewished.”

Further, it must be accepted that, regrettably, stereotypical views as to the proper role of amother are still pervasive and render the question whether a mother would prefer to move toanother state or country or to maintain a close bond with her child one that will, almostinevitably, disadvantage her forensically. A mother who opts for relocation in preference tomaintaining a close bond with her child runs the risk that she will be seen as selfishly preferringher own interests to those of her child; a mother who opts to stay with her child runs the riskof not having her reasons for relocating treated with the seriousness they deserve.

It must be acknowledged that it is likely that in very many relocation cases, a mother willconcede that, if she has to choose between relocation and having her child live with her, shewill choose to have her child live with her. That being so, she runs the risk that her interestswill not be properly taken into account.86

U v. U was a close case and could have gone either way. Militating against success forthe mother were two factors. First was the distance. Sidney to Mumbai (Bombay), India isabout 6,000 miles. Second, on three occasions the mother, without cause, removed the childfrom the father, depriving him of his access.87 Once she went to India and a second timeshe tried, but the child’s name popped up on the passport watch list.88 The uncooperativeparent faces a steep uphill climb in a relocation case because of the fear that, once allowedto relocate, she can merely sit on her hands to frustrate the other parent’s access rights.

Canada: In Gordon v. Goertz, the Supreme Court of Canada, in a case of first impression,established that country’s rules for determining relocation cases.89 Janet Gordon wanted tomove from Saskatoon, Saskatchewan to Adelaide, Australia to study orthodontics, and shewanted to take her 5-year-old daughter with her.90 The mother had obtained primaryphysical custody of the child from an earlier divorce but the father had generous accessrights.91 In fact, a custody access study showed that the father spent more time with thechild than the mother, both before and after the divorce.92 Also, in an interim mediationagreement, the parents agreed that, if one party moved, the child would remain inSaskatoon.93 The trial court permitted the relocation and the decision was upheld by theintermediate appellate court (in a decision that was 11 lines long); the decision included a


restriction that the father had to visit his daughter in Australia, and the decision wasunanimously upheld by the Supreme Court, except for the restriction regarding the visitsto Australia.94

This is the most baffling relocation case you will come across. There are virtually nofacts stated in the decision. Only a single fact was set forth about the move, that is,the mother’s desire to study orthodontics in Australia.95 Are there no dental schools inSaskatchewan, Manitoba, or Alberta? In fact, the universities of all three provinces havedental schools, located in Saskatoon, Winnipeg, and Edmonton, respectively. No facts arediscussed in the decision about the child, including her environment in Saskatoon; herexpected environment in Australia; or her health, schooling, extended family, or her relation-ship with her father or even the amount of time she spends with her father. Nothing is saidabout the mediation agreement in which the parents agreed to have the child live in Saskatoon.You will, however, find clearly stated in this decision the fact that the custody order awardedthe mother physical custody and that fact is repeated over and over.96

In Gordon, you will hear that the positive law of Canada has no presumption in favor ofeither parent, that the best interest of the child is not just the paramount consideration butthe only consideration, that the burden of proof (onus) is on both parents to prove best inter-est and that the law requires that a contact order maximize, to the extent that it is in thechild’s best interest, the time that the child spends with each parent.97 Also, under Canadianlaw, the custodial parent’s conduct can be considered only if it is relevant to his or herability to act as a parent of the child. “Parental conduct, however meritorious or howeverreprehensible, does not enter the analysis unless it relates to the ability of the parent to meetthe needs of the child.”98 This is a statement of astounding proportions with which virtuallyno parent with any measure of common sense would agree. Only a court or a legislaturecould make such a statement. To apply this principle of law requires judges of common senseto stretch the law beyond recognition to act rationally. Applying this statement as writtenwould require that a court must disregard, say, that the father is the head of a drug cartelif, in all other respects, he was an attentive and capable father. It would also require a courtto disregard, say, the fact that an attentive and capable mother was a prostitute (perhaps inNevada where it is legal).99 Find me one judge in America who would not consider both ofthose facts in making a custody decision. To consider both of those facts, which on the faceof Canadian law are not relevant to a custody decision, the trial court would have to findthat a parent’s engaging in those pursuits was a proxy for poor judgment which couldimpact on child care decisions—which is exactly what every judge would do, but that isnot what the law says that he or she is supposed to do.

It is also worth considering the Canadian proposition that only the child’s interests areto be considered. “The amendment to the Divorce Act in 1986 elevated the best interest ofthe child from a ‘paramount’ consideration, to the ‘only’ relevant issue.”100 This is anotherstatement of law of breathtaking proportions and a proposition completely divorced fromreal life. The reason that it is divorced from real life is that a parent’s choice to relocatealmost never has anything to do with the child’s direct best interests. To get around thisCanadian law, the trial judge must stretch beyond recognition the trickle-down theory;namely, that whatever is good for the moving parent is good for the child. That propositionis neither obvious nor provable.

Say we have a husband, a wife, and two kids who live in Lake Wobegon, Minnesota,where all the women are strong, all the men are good looking, and all the children are aboveaverage. Lake Wobegon is the family-friendly Nirvana of the United States. Dad is themanager of the local Sears and mom is a homemaker. Dad gets notice that he is being


upgraded and transferred to the Sears store in Greenville, Mississippi, a location to whichno family has relocated in 50 years. That family will be relocating to Mississippi. Thequality of the schools, parks, medical facilities, weather, crime rates, or the wishes of thechildren will not matter. The only deciding factor will be the status of the father’s job, whichthe family needs to exist. So, when a similar thing happens when two parents are separated,to say that a court can only consider the child’s best interest is—well, the word “absurd”comes to mind. What we, as trial judges, are really doing in these cases is considering theentire family dynamics—not just the best interest of the child. If one wants to argue thatin the end we have really considered the child’s best interest, my answer is that if bestinterest means anything and everything, then it means nothing.

Let’s take another real-life example from my docket, with a few facts changed to concealidentities. Mary and John are both from Cleveland and college sweethearts. They marry andJohn gets his first professional job as an architect in Albany, New York. The couple movesto Albany and starts a family. After a few years, John finds his younger secretary moreattractive and leaves his wife (remember, in Canada that fact cannot be considered). Thecouple divorces. John is a decent father. He sees the kids every other weekend and everyWednesday for a dinner visit. His child support is always on time. The mother has put thechildren in day care and enters the workplace; however, she has no family in Albany. Hersocial life revolved around her ex-husband and, with the divorce, that evaporated; she willattend no more parties at the country club, and Sunday church services are now stressful.All her family live in Cleveland where she returns for holidays and vacations. She meetsa man in Cleveland, falls in love, and wants to marry him and move to Cleveland. Theschools, parks, weather, crime rates, cultural opportunities, medical facilities, and everythingelse you can think of in Cleveland are no better or no worse than in Albany.

Nine out of 10 judges will let this mother relocate to Cleveland. Why? Because it is fairand the mother has a right to live her life in a way she chooses and there are no child-centered issues that outweigh her decision. Should the mother be stuck in Albany the restof her children’s minority because her husband traded her in for a younger model? Anyattempts by a trial judge to analyze this case on a child’s-best-interest theory will be justwindow dressing. Consider the fact that the kids are doing just fine in Albany. Humannature being what it is, the mother, if required to stay, will no doubt make the best of it andfind a companion to love and share her life in Albany. Will the kids be better off with themother in Cleveland? Will they suffer a detriment if the mother is required to live inAlbany? I say that a trial judge has no way of knowing and there is no evidence that canbe produced to prove either proposition. So let us just admit that, as judges, we are doingour best to balance equities, do substantial justice, and make sure that the children are noworse off by our decisions. But let us not kid ourselves that we are somehow able to divinea child’s best interest for, perhaps, a decade or more into the future or that lawyers andforensic psychologists can produce evidence which proves such a fact.

It is also worth noting here that Canadian law, not having gone far enough off the deepend, swims toward the rip tides. It is also the law in Canada that the reasons for the moveare irrelevant, except perhaps if the mother is intentionally trying to thwart the father’scontact rights. So, under Canadian law, I have been wrongly deciding all those “mom meta man on the Internet and wants to move to North Carolina” cases. At this point, I wouldinvite you to disbelieve everything I have just said and read Gordon and decide for yourself.

One can see from a review of these leading relocation opinions of the highest courts insix significant jurisdictions that there is no agreed-upon methodology to resolve these cases.


Some courts, in my view, have violated the judicial Hippocratic Oath of first doing no harm.New York has told its trial courts to, in effect, “do your best.” So what’s a family court judgeto do? A trial court judge can improve the odds of reaching a correct decision (or the leastincorrect decision) by requiring the parents to provide as much evidence as is availableon every factor that could conceivably impact the child’s best interest, the family dynamics,and the other equities of the situation. Pulling from over 60 state and international deci-sions and statutes in several of those jurisdictions, I have distilled the 36 relocationfactors.

THE 36 RELOCATION FACTORS

If you examine the leading cases on relocation and the statutory provisions of the severalstates in which the legislature has addressed the subject, you will discover the followingrelocation factors—none of which, by the way, specifically mentions parks, schools, orweather. These factors are:

1. Length of the parent–parent relationship2. Length of the parent–child relationship3. Were the parents married?4. Parents’ time-sharing agreement5. Quality of parenting time6. Quantity of parenting time7. Age, maturity, and special needs of the child8. Reason for the move9. Reason the staying parent objects to the move

10. The advantages of the move to the moving parent11. Advantages of the move to the child12. Disadvantages of the move to the staying parent13. Disadvantages of the move to the child14. Travel time and cost of travel15. The demands or benefits of the moving parent’s second marriage/relationship16. Feasibility of a parallel move by the staying parent17. Feasibility of a move by the moving parent’s new husband or significant other18. Does the staying parent really want custody?19. Is a change of custody practical?20. Can meaningful child access for the staying parent be provided if the move is

allowed?21. Will the moving parent comply with the access order?22. The effect of the move on extended family on both sides23. Personal misconduct by either parent24. The preference of a mature child25. Any agreement between the parents about relocations26. The child’s adjustment to home, school, and community27. The length of time the child has lived in a stable environment28. The financial resources of the two family units29. The expected permanence of the new custodial environment30. The mental and physical health of all persons in the two family units


31. Continuation of the child’s cultural and religious heritage32. Ability of the parents to cooperate with each other33. Ability of the moving parent to foster the child’s relationship with the staying parent34. The effect on the child of any domestic violence35. Any false allegations of sex abuse?36. The citizenship status of the parents and the child

If a court receives evidence on as many of these factors as have relevance to the caseand determines for each one whether it weighs in favor of one parent or another, a trialjudge will have a fair chance of getting a relocation case right, but only if one parent clearlypredominates. The considerations are, obviously, not all of equal weight and in differentcases the same factor may have differing weight.

CONCLUSION

With all this said, I want to advocate for two things. First, we must create a processthat encourages, empowers, and commands parents to reach joint decisions. Second,the legislature must create some bright-line rules that raise the bar for parentalbehaviors and expectations and that add some predictability to the process. Here aresome suggestions:

To encourage, empower, and command parents to reach joint decisions requires a lot ofeducation of the parents and the lawyers by the judge. It also requires that the judge createa settlement-friendly family court process. Courtrooms by their very nature put parents inopposition. In fact, when they enter a courtroom, we stop calling them parents and startcalling them parties. No wonder they stop behaving as parents. Let us lower the threat levelfrom red to blue and provide parents with an arena of calmness where rationality canprevail. Let us take the psychologist out of the courtroom and put him or her back into theconsultation room where he or she can educate the parents about the challenges they willface raising their children if the parents are distant from one another. Let us also use mediation,through which the parents and their lawyers can assess the relocation factors in an objectivemanner and in a pressure-reduced setting.

Second, the legislature (and only the legislature) might want to consider some bright-linerules that express a social policy that favors two involved parents living near one anotherand that injects some predictability into the process. Here are a few suggestions to providesome food for thought:

1. It shall be a rebuttable presumption that it is in a child’s best interest to relocate witha parent who exercises more than 70% of a child’s parenting time, provided that themove is for a valid purpose and the location of the move is reasonable in light ofthat purpose.

2. A custodial parent shall be entitled to relocate with a child for any valid reason if(1) the parents were never married or never resided for more than 2 continuous yearstogether as a family unit, (2) the noncustodial parent has only occasional orsporadic contact with the child, or (3) the noncustodial parent has failed to sub-stantially support the child.

3. A relocation shall be deemed to occur when a child would reside more than a1-hour drive from the noncustodial parent or when the move would otherwise


significantly impair the noncustodial parent’s access that had been customary priorto the move.

4. If a relocation is prompted primarily by financial concerns, an offer by the non-custodial parent which ameliorates those considerations by an increase in support tothe child or mother shall be a factor weighing against the move.

5. If a move is allowed, a noncustodial parent shall be allowed a dollar-for-dollar reduc-tion in child support to offset any costs of exercising his parental access.

6. If a relocation is allowed that is not conducive to regular contact on at least a twicemonthly basis, the noncustodial parent shall have a presumptive right to 75% of thetotal amount of all school breaks lasting longer than 3 days.

If we, as a society truly valued the rights of children beyond all others, we would havelaws that commanded parents to live within the same school district as their children. Wewill never see such a law for many reasons but primarily, I believe, because much of thehomage that we pay to children’s rights is lip service at best and hypocrisy at worst. Whena parent enters a lawyer’s office with a relocation case, he or she has embarked on a processthat will cast his or her child’s fate to the wind. Once a contested custody case has com-menced, a parent, by that point, has surrendered almost all control over the future of his orher child. My advice—use rock-paper-scissors. It’s faster, cheaper, and just as accurate.

NOTES

1. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).2. Not every jurisdiction uses such antiquated language. It is most prominent in the eastern United States and

almost completely abandoned in the other common law countries. In much of the rest of the United States, custodyis referred to as parental responsibility and visitation is referred to as parenting time, or some variationclose to this. In the British Commonwealth countries, custody is referred to as a residency order and visitation isimplemented through a contact order.

3. Matthew 12:37. (King James).4. Bentham, (1748–1832) an English philosopher and economist, was the main proponent of utilitarianism.

His “nonsense on stilts” comment was a criticism of the theory that human rights derived from natural law. Jer-

emy Bentham, An Introduction to the Principles of Morals and Legislation (1780).5. 144 N.J. Super. 200, 203 (Ch. Div. 1976), aff’d per curiam, 144 N.J. Super. 352 (App. Div. 1976).6. Loving v. Virginia, 388 U.S. 1, 2 (1967).7. I have been a family court judge since 1994 and during that time I have heard over 40,000 petitions of every

conceivable nature involving children and parents.8. See The Annie E. Casey Foundation, Kids Count (2006), available at http://www.aecf.org/kidscount/.9. 87 N.Y.2d 727 (1996).10. 913 P.2d 473 (Cal. 1996).11. 88 P.3d 81 (Cal. 2004).12. 850 N.E.2d 513 (Mass. 2006).13. 2 WLR 1826 (2001) (Eng.).14. (2002) 211 CLR 238 (Austl.).15. [1996] 2 S.C.R. 27 (Can.). For a state-by-state survey, see Linda D. Elrod, States Differ on Relocation,

Fam. Adv. 4, 10–11 (2006); see also Laura W. Morgan, Relocation of Custodial Parent: Standards and Burdenof Proof, State by State Survey, Fam. Law Reader (2005).

16. 87 N.Y.2d at 727–43.17. Id.18. Id.19. Id.20. Id.21. Id.

http://www.aecf.org/kidscount/


22. “Scintilla” derives from the Latin for spark or trace. Common law doctrine held “that even if the slightestamount of relevant evidence exists on an issue, then a motion for summary judgment or for a directed verdictcannot be granted and the issue must go to the jury, or trier of fact.” Black’s Law Dictionary 1347 (7th ed.1999).

23. 87 N.Y.2d 727 (1996).24. Id. at 727–43.25. 913 P.2d at 473–86.26. Id.27. Id.28. Id.29. Id.30. Id. at 476 (citing Cal. Fam. Code § 7501x (West 2004)) (code is cited to current version).31. 39 Cal. Rpt. 2d 213, 231 (Cal. Ct. App. 1995), rev’d by In re Marriage of Burgess, 913 P.2d 473 (Cal. 1996).32. 913 P.2d at 473–86.33. Id.34. Id. at 482.35. Cal. Fam. Code § 7501 (West 2003).36. 88 P.3d at 81–103.37. Id.38. Id.39. Id.40. Id.41. Id.42. Id.43. Id.44. Id.45. 913 P.2d at 482 (emphasis added).46. 88 P.3d at 98 (emphasis added).47. Massachusetts recently articulated a pure best interest test in relocation cases where the parents shared

joint physical and legal custody. The court also ruled that the denial of the mother’s request to move did not violateher constitutional right to travel. See Mason, 850 N.E.2d 513.

48. 850 N.E.2d at 513–21. The Massachusetts rule for relocation cases when the moving parent has sole cus-tody is set forth in Yannas v. Frondistou-Yannas, 395 Mass. 704, 705 (1985). Like Mason, Yannas is equal dosesof platitudes and bromides.

49. Mason, 850 N.E.2d at 515.50. Id. at 513–21.51. Id.52. Id.53. Id.54. Id.55. Id.56. Id.57. Id. Federal law provides under IDEA (Individuals with Disabilities Education Act), that a 504 plan

provide extra resources to a child who is not learning disabled or emotionally disabled but still is in need of helpin the school room. See Individuals with Disabilities Education Act § 33, 20 U.S.C.S. § 1400 (2006).

58. 850 N.E.2d at 513–21.59. 2 WLR 1826.60. Id.61. Id.62. Id.63. Id. at 13.64. Id. at 31–32 (emphasis added).65. 2 WLR 1826.66. Id.67. 211 CLR 238.68. Id.69. Id.


70. Id.71. Id.72. Id.73. Id.74. Id.75. Id.76. Id.77. Id.78. Id.79. Id.80. Id.81. Id.82. Id.83. Id.84. Id.85. Id.86. Id. at 36–37.87. 211 CLR 238.88. Id.89. 2 S.C.R. 27–38.90. Id.91. Id.92. Id.93. Id.94. Id.95. Id.96. Id.97. Id.98. Id. at 37–38.99. Lest you think no one would make such an argument, I have a real-life example. As labor counsel for the

City of Albany, I prosecuted a disciplinary hearing against a firefighter who was charged, while off duty, witharson. The union made the argument that this off-duty conduct had nothing to do with his ability to fight fires. Infact, they contended, it made him a better firefighter because he was more experienced with how fires were started.

100. 2 S.C.R. at 36 (internal citations deleted, emphasis in original).

The Hon. W. Dennis Duggan has been a family court judge since 1994. He is a trustee of the NationalCouncil of Juvenile and Family Court Judges and past president of the New York State Family CourtJudges Association. He is also a member and past director of the American Judges Association and theAmerican Judicature Society. Judge Duggan is also a founding Board Member of the New York Chapterof the Association of Family and Conciliation Courts and its current president. Within the New York StateJudiciary he serves on the Judicial Institute Committee, the Family Court Advisory and Rules Committeeand the Family Law Curriculum Development Committee. Judge Duggan is on the faculty of the NationalJudicial College and the New York State Judicial Institute. He is a frequent lecturer at international,national, and state judicial and legal programs. He also writes a monthly column for the bar associationnewsletter on topical issues on the history of the law.

ROCK-PAPER-SCISSORS: PLAYING THE ODDS WITH THE LAW OF CHILD RELOCATION

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